Hatch has for decades been a high-profile voice on the Senate's confirmation process for federal judges. He’s a former chairman of the Senate Judiciary Committee, and in 2005, when Democrats were blocking some of President George W. Bush’s nominees, Hatch wrote a law review article (PDF) calling their tactics unconstitutional.
In an interview, he said that law review article was on his mind as the Senate voted on whether to invoke “cloture” on the nomination of John “Jack” McConnell Jr. for U.S. District Court in Rhode Island. A “yes” vote meant ending debate on McConnell’s nomination, while a “no” vote meant supporting a filibuster.
Hatch said neither option appealed to him, so he voted “present,” recording that he was physically in the Senate chamber.
“I just felt that was the only honorable thing I could do under the circumstances,” he said. “I opposed the nominee, but I didn’t want to vote against cloture.”
The effect of his vote was similar to the effect of voting “no” — depriving Democrats of a vote they could have used to ensure they had at least 60 to cut off debate — but Hatch said he sees what he did as substantially different from supporting a filibuster. “It’s not the same. If it were the same, I’d have voted ‘no,’” he said. He added, “It’s the only way I could preserve my integrity on this matter.”
Even without Hatch, McConnell’s supporters got 63 votes to end debate. A final vote on whether to confirm McConnell is likely on Thursday.
Asked whether he could ever support a filibuster of a judicial nominee, Hatch did not rule out the possibility. “I have every right to vote ‘no’ on cloture, because the Democrats have set the standard,” Hatch said, alluding to the judge wars of the Bush administration. Still, he said he wouldn’t feel good about it, “because I still feel I was right about the filibustering of judges.”
National Law Journal photo by Diego M. Radzinschi